United States Army Corps of Engineers - Environmental Protection and Regulatory Program

Environmental Protection and Regulatory Program

The Regulatory Program is authorized to protect the Nation's aquatic resources. The Corps evaluates permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands. Two primary authorities granted to the Army Corps of Engineers by Congress fall under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act.

Section 10 of the Rivers and Harbors Act of 1899 (codified in Chapter 33, Section 403 of the United States Code) gave the Corps authority over navigable waters of the United States. As navigable waters are defined as "navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently being used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce". Section 10 covers construction, excavation, or deposition of materials in, over, or under such waters, or any work that would affect the course, location, condition or capacity of those waters. Actions requiring Section 10 permits include structures (e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission lines) and work such as dredging or disposal of dredged material, or excavation, filling or other modifications to the navigable waters of the United States. The Coast Guard also has responsibility for permitting the erection or modification of bridges over navigable waters of the U.S.

Another of the major responsibilities of the Army Corps of Engineers is administering the permitting program under Section 404 of the Federal Water Pollution Control Act of 1972. (aka "The Clean Water Act"). This Act authorized the Secretary of the Army to issue permits for the discharge of dredged and fill material in waters of the United States, including adjacent wetlands. The geographic extent of waters of the United States subject to Section 404 permits fall under a broader definition and include tributaries to navigable waters and adjacent wetlands. The Corps must first determine if the waters at the project site are jurisdictional and subject to the requirements of the Section 404 permitting program. Once jurisdiction has been established, permit review and authorization follows a sequence process that encourages avoidance of impacts, followed by minimizing impacts and, finally, requiring mitigation for unavoidable impacts to the aquatic environment. This sequence is described in the Section 404(b)(1) guidelines.

There are three types of permits issued by the Corps of Engineers: Nationwide, Regional General, and Individual. 80% of the permits issued are nationwide permits, which include 50 general type of activities for minimal impacts to waters of the United States, as published in the Federal Register. Nationwide permits are subject to a reauthorization process every 5 years, with the most recent reauthorization occurring in March 2012. To gain authorization under a nationwide permit, an applicant must comply with the terms and conditions of the nationwide permit. Select nationwide permits require preconstruction notification to the applicable Corps district office notifying them of his or her intent, type and amount of impact and fill in waters, and a site map. Although the nationwide process is fairly simple, Corps approval must be obtained before commencing with any work in waters of the United States. Regional general permits are specific to each Corps district office. Individual permits are generally required for projects that impact greater than 0.5 acres (2,000 m2) of waters of the United States. Individual permits are required for activities that result in more than minimal impacts to the aquatic environment.